Feds confirm mining problems

Federal regulators have decided there are widespread problems with the way huge mountaintop removal coal mines are permitted in West Virginia.

Inspectors from the U.S. Office of Surface Mining say coal operators are "indiscriminately dumping" waste rock and earth into valleys because it is easier and cheaper than rebuilding hilltops.

OSM also confirmed that, for more than 20 years, mountaintop removal mines have been illegally permitted by the state without plans for developing the stripped land.

A 130-page draft of a much-anticipated OSM report also states that the lack of concrete "approximate original contour" guidelines has allowed mine operators to dump more dirt and rock into valley fills that bury streams.

Approximate original contour law entails putting a mountain back much the same way a coal company found it unless there is some immediate call for a flattened mountaintop.

OSM concluded that the state Division of Environmental Protection needs to strengthen the state mining law to match stronger federal requirements, consider wholesale changes in the way large surface mines are permitted, and review hundreds of permits to fix various illegal provisions.

On what insiders say is the most crucial issue - how to define approximate original contour, or AOC - OSM hedged. The agency said it would probably take no action and leave it up to DEP to come up with tighter AOC rules.

"Some sites meeting AOC ... show a significant loss of elevation," the draft report states. "OSM is suggesting WVDEP develop guidelines for AOC, particularly for large operations where the AOC decision becomes critical to the allowance of the mining method and post-mining land use."

OSM Charleston field office Director Roger Calhoun launched the study earlier this year in response to citizen protests about mountaintop removal and following national and local media reports of industry abuses.

The agency's original agreement with DEP called for the report to be issued in its final form by Aug. 15.

Allen Klein, OSM's regional director in Pittsburgh, said last week the public release would be delayed until September. Klein did not give a reason. A draft copy was recently obtained by the Sunday Gazette-Mail.

Under the 1977 Surface Mining Control and Reclamation Act, coal operators must reclaim their strip mines to their approximate original contour, or so it "closely resembles the general surface configuration" of the land before mining.

Under the law, mountaintop removal was meant to be a limited exception. Mining companies could ignore AOC, and flatten out the land, only if they submitted concrete plans to build schools, factories, public parks or other developments. To qualify, mine operators must show that flat land is essential for the post-mining developments they propose.

In recent months, OSM officials have downplayed criticism from environmental groups that the state DEP illegally issues mountaintop removal permits that violate the 1977 law, and that OSM hasn't monitored the state's actions closely enough.

The findings of the federal agency's study, however, back up those critics.

In its six-month study, OSM examined permit files and conducted field inspections for 19 mountaintop removal and other large-scale surface coal mines in Southern West Virginia.

Eight of those 19 permits received AOC variances.

OSM investigators found that only three of those eight permits contained post-mining land uses which are allowed for mountaintop removal mines.

Four of the other five improper permits called for post-mining land uses of fish and wildlife habitat or range land, neither of which is allowed for mountaintop removal mines.

The other AOC variance permit proposed agriculture as a post-mining land use, but did not "demonstrate that flat land is essential to support the proposed use, and it does not contain the required plans and assurances to show that the proposed agricultural land use is needed and will be achieved," OSM said.

OSM investigators also found that most of the AOC variance permits did not contain sufficient documentation to grant those variances. "Few, if any, contained the required agency approvals or the specific plan and assurances demonstrating a need for and supporting the proposed post-mining land use," OSM found.

Among the 11 permits that did not receive AOC variances, OSM inspectors found that what DEP accepted as constituting AOC varied widely.

In some cases, mine operators rebuilt mountains to within 40 feet of their original elevation. In others, mountains were only rebuilt to within 340 feet of their original elevation. In still others, permits contained little or no information about what would constitute AOC reclamation at the mines.

Generally, the greater the change in elevation that mine operators are allowed to make, while still qualifying as AOC, the greater the amount of mine waste that is dumped into valley fills. The rock and earth that would go back on hilltops instead goes into valley fills.

Coal operators say they need valley fills to dispose of mining "swell," the increased amount of material formed when compacted rock and earth is blown apart by blasting and dug up by huge shovels.

Many of the permits OSM investigators reviewed contained concrete data on how much mined material expanded, and how much was put back on hilltops or dumped in valley fills.

For the permits that did contain that information, the material removed to reach coal swelled by 20 percent to 40 percent over the original amount removed. Coal operators, however, placed from 43 percent to 73 percent of the original amount into valley fills.

"This indicates that the operator may be indiscriminately dumping excess spoil for convenience or economic reasons, rather than for what is needed to accomplish the post-mining land use," the OSM draft report concluded.

The OSM draft notes that DEP officials "have said that they are hard pressed to say when a site does not meet AOC, because the state's definition of AOC lacks sufficient detail.

"With the completion of this study, OSM, in cooperation with the state, will now begin evaluating these findings to determine if the state's interpretation and application of its definition of AOC ... is reasonable and appropriate or whether changes are warranted," the draft report says.

During an interview two weeks ago, DEP Director Michael Miano said he would not propose new state mining regulations to define approximate original contour.

"There is a lot of discretion, and I think that's the way it should remain," Miano said.

John Ailes, chief of the DEP Office of Mining and Reclamation, said it OSM's job - not the state's - to come up with a concrete definition of AOC.

"There are some things that need some clarification, and this agency can't do that," Ailes said. "I don't think that's the right place for it.

"Nobody is really refereeing this stuff" on a national level, Ailes said. "That leads to imbalances, and one of the purposes of the federal law was to create a level playing field among the states."

Patrick McGinley, an environmental law professor at West Virginia University, agreed.

McGinley said OSM's inaction is allowing "West Virginia to have regulations that are inconsistent with other states, and basically allowing a race to the bottom, that is to say, the most minimal standards among the states.

"It is true that the states have some discretion, but only within the scope of the definition that OSM has given them," McGinley said last week. "Congress did not intend that AOC be defined at the whims of the states.

"It's up to OSM to define and enforce what constitutes AOC," he said. "OSM is ignoring its responsibility and sidestepping the law."